The Court of Justice of the European Union has confirmed that member states, including Ireland, may investigate and establish past fraud involving marriages of convenience, even when the person suspected has since acquired the nationality of a host country.
The ruling comes after a non-EU national living in Ireland married an EU citizen shortly before his residence permit expired. He later obtained a residence card as a family member and subsequently acquired Irish nationality.
Irish authorities suspected the marriage was a sham to allow the unnamed man to obtain residence rights.
The Minister for Justice concluded that it was fraud and abuse of rights, declaring the rights obtained under the EU Free Movement Directive were void from the start.
The individual, referred to in court documents as “R.S.”, argued that, as an Irish citizen, he was no longer subject to the directive.
Court’s ruling
The European Court of Justice this morning ruled that, while the Free Movement Directive principally applies to European Union citizens residing in a Member State other than their own and to their family members, individuals may “remain subject to certain provisions of the directive for the period during which they benefited from those provisions.”
In other words, member states, including Ireland, continue to have the right to investigate suspect marriages, even after someone has gained Irish (and therefore EU) citizenship.
Rules aimed at preventing fraud and abuse of rights apply to past situations and permit member states to take measures affecting rights previously conferred, even if the person is no longer a beneficiary of the directive at the time of investigation, judges concluded.
The Court went as far as to clarify that allowing investigations after nationality has been acquired is necessary to effectively combat marriages of convenience and fraud, which may only come to light later.
Consequences and safeguards
The judgement means that member states categorically have the power to investigate and, if appropriate, establish fraud or abuse without having to immediately withdraw the contested rights.
Any exercise of that power must respect proportionality and procedural safeguards, under EU law. It may lead later to consequences such as withdrawal of nationality — and thus European Union citizenship — provided EU law requirements are met.
Implications
The judgment confirms national authorities’ ability to pursue suspected immigration fraud retrospectively and signals that acquiring nationality does not automatically shield past abuses from review, subject to legal protections.